CIVIL LAW & MOTION

Armand Rios vs Gloria Gonzalez et al

Case No:

17CV00013

Hearing Date:

Fri Feb 09, 2018 9:30

Nature of Proceedings: Motion: Terminating Sanctions

TENTATIVE RULING: The motion for sanctions for failure to comply with court order is denied; the court order compelling discovery responses previously executed by the Court was never served upon the Gonzalez defendants, precluding any finding that their failure to comply with the court order was willful.

As detailed below, the Court will reissue the prior order compelling the defendants to respond to the written discovery, without objection, no later than 15 days after the date upon which the court’s formal, executed order is served upon them.

Background: This action arises from injuries suffered by plaintiff when he was attacked by a dog owned by defendant Jenica Ochoa, while on the property of Gloria Gonzalez and Tony Gonzalez. Plaintiff served the Gonzalez defendants with written discovery—including form interrogatories, special interrogatories, and a request for production of documents—to which the Gonzalez defendants provided no responses. At a hearing on December 15, 2017, the Court ordered the Gonzalez defendants to provide verified responses to the discovery, without objection, on or before December 29, 2017, and ordered the Gonzalez defendants to pay sanctions to plaintiff. The Gonzalez defendants had not opposed the motion, and did not appear at the hearing. Plaintiff mailed the “proposed order” on the motions to the defendants on December 19. The Court did not execute the order until December 22, 2017. The executed order was never served on the defendants. No responses were provided by the Gonzalez defendants by December 29, 2017, or by the time the current motion was filed on January 10, 2018.

Motion: Plaintiff seeks an order imposing terminating sanctions, based upon the Gonzalez defendants’ failure to comply with this court’s order compelling verified responses to the written discovery.

The Gonzalez defendants have not filed opposition to the motion.

Analysis: The motion for terminating sanctions is denied.

The motions to compel related to form and special interrogatories, and a demand for production of documents. Pursuant to Code of Civil Procedure sections 2023.010(g), 2030.300(e), and 2031.310(i), if a party fails to obey an order compelling further responses, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and may also impose a monetary sanction either in lieu of or in addition to that sanction. The court has broad discretion in selecting the appropriate penalty. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) However, enhanced (non-monetary) sanctions are also largely available only when the failure to comply with the court order was willful. (See, e.g., Biles v. Exxon Mobil Corporation (2004) 124 Cal.App.4th 1315, 1327.)

Parties to litigation—whether plaintiffs or defendants—are required to participate in and responds to any proper discovery propounded by the opposing party. Here, plaintiff served interrogatories and a request for production of documents, both of which are permissible forms of discovery. The Gonzalez defendants, who have appeared in pro per in this action, failed to provide responses to the discovery. Plaintiff then obtained a court order compelling them to provide responses by a date certain. However, the executed order was never served upon the Gonzalez defendants. Consequently, the Court cannot find that their failure to comply with the court order was willful, requiring that the motion for terminating sanctions be denied.

Because the prior court order was worded in terms of a specific date by which responses had to be provided, and because that date has long since passed, the Court will issue a new order compelling defendants to respond, without objection, to the form interrogatories, special interrogatories, and demand for production of documents served upon them by plaintiff in this case. The Gonzalez defendants are ordered to provide those responses no later than 15 days after the date upon which the court’s formal, executed order is served upon them. The sanctions previously ordered by the Court on December 15, 2017, will be included in the new order to be served upon the Gonzalez defendants.

The Court instructs plaintiff to make it clear and obvious in the formal order—both in its caption and in its body—that the order issued by the court both denies the motion for terminating sanctions, and issues a new order compelling the Gonzalez defendants to provide verified responses to the discovery, without objection. The order shall also caution the Gonzalez defendants that a failure to comply with the terms of the court order could result in the striking of their answer and, ultimately, the entry of a default and default judgment against them.

[The Court notes that no default could be entered until plaintiff proves compliance with Code of Civil Procedure section 425.11, the requirements of which still apply when a defendant’s answer is stricken as a discovery sanction. (See Morgan v. Southern California Rapid Transit District (1987) 192 Cal.App.3d 976, 985.)]